0120142277
10-01-2015
[Complainant], a/k/a Trent M.,1 [Complainant], a/k/a Trent M.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (U.S. Marshals Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
[Complainant], a/k/a
Trent M.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 0120142277
Agency No. USM-2013-00890
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 17, 2014, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Chief Inspector/Criminal Investigator at the Agency's Tactical Operations Division (TOD)/Office of Strategic Technology in Arlington, Virginia.
On October 23, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination in reprisal for whistleblower activity and association with an employee who has filed EEO complaints when:
he received a satisfactory rating on his 2013 annual performance evaluation and was instructed to attend weekly meetings at the U.S. Marshals Service (USMS) Headquarters building in Arlington, Virginia.
Complainant alleged that on May 17, 2012, he sent an email to the Office of Inspection (OI), notifying them of missing property as well as potential gross misconduct and neglect of USMS property. Specifically, Complainant provided a detailed explanation concerning his nationwide investigation into the scope of USMS property which was unaccounted for to the OI and the Office of General Counsel (OGC) on July 2, 2013. Complainant further alleged that because of his reports to the OI and OGC, the Acting Assistant Director (Acting AD) retaliated against him on July 10, 2013, by overriding his immediate supervisor's authority and issuing him a "satisfactory" rating on his 2013 performance evaluation.
Moreover, Complainant alleged further retaliation because the Acting AD required him to travel outside of his duty station and attend weekly meetings at the USMS Headquarters building.
In its April 17, 2014 final decision, the Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. 1614.107(a)(1), finding that Complainant was not aggrieved. The Agency determined that Complainant's allegations that the Acting AD's has engaged in reprisal for his whistleblowing activity is not within the purview of the EEO complaint process.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of C.F.R. � 1614.103. The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
A fair reading of the Agency's dismissal of the instant complaint reflects that the Agency dismissed the basis of reprisal for Complainant's whistleblower activities. The Commission has previously held that whistleblower activities are generally outside the purview of the EEO process. See Giannu v. Department of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989). Here, there is no indication at all that Complainant's whistleblower activity involved allegations of employment discrimination. Therefore, we find that the Agency properly dismissed the allegation based on reprisal for whistleblower activities. As the Agency noted in its final decision, Complainant is advised to raise his whistleblower complaints with the U.S. Office of Special Counsel.
Regarding Complainant's association as the supervisor of an employee who has filed multiple EEO complaints, we find that, based on the facts as alleged in this case, this allegation does not rise to the level of prior protected activity to support a viable claim of reprisal.
The Agency's final decision to dismiss the formal complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 1, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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